State of Indiana v. Jarrel Luke Ellis

• Court: Indiana Court of Appeals
• Decided: August 10, 2020
• Docket: 20A-CR-61
• Status: Published

Opinion

FILED Aug 10 2020, 9:15 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Jeffrey A. Baldwin Attorney General of Indiana Tyler D. Helmond Indianapolis, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

State of Indiana, August 10, 2020 Appellant-Plaintiff, Court of Appeals Case No. 20A-CR-61 v. Appeal from the Marion Superior Court Jarrel Luke Ellis, The Honorable Jennifer Harrison, Appellee-Defendant. Judge Trial Court Cause No. 49G20-1906-F2-24884

Tavitas, Judge.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 1 of 12 Case Summary [1] The State appeals the trial court’s order granting Jarrel Ellis’ motion to suppress

evidence seized as a result of a compliance check of Ellis’ residence while Ellis

was serving a community corrections sentence. We reverse and remand.

Issue [2] The State raises one issue for our review, which we revise and restate as

whether the trial court erred by granting Ellis’ motion to suppress.

Facts [3] The relevant events occurred in 2019, as Ellis was serving a home detention

sentence with Marion County Community Corrections (“Community

Corrections”), following Ellis’ guilty plea for dealing in cocaine, a Class B

felony. Pursuant to Ellis’ Community Corrections placement, Ellis signed a

“Marion County Community Corrections Contract.” State’s Ex. 2. The

Contract provided, in relevant part:

You waive your right against search and seizure, and shall permit MCCC staff, or any law enforcement officer acting on MCCC’s behalf, to search your person, residence, motor vehicle, or any location where your personal property may be found, to insure compliance with the requirements of community corrections.

Id. Jameil Parker, Ellis’ case manager for Community Corrections, began to

monitor Ellis in January 2019. Parker developed suspicions regarding Ellis’

compliance with the terms of the Contract because Ellis “requested to visit

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 2 of 12 expensive restaurants while he was workin[g] a part-time temp[orary] service

job. . . .” Tr. Vol. II pp. 5-6. Parker shared her suspicions with Jill Jones, a

Community Corrections law enforcement liaison, and asked Jones to complete

a compliance check at Ellis’ home.

[4] On June 20, 2019, Jones went to Ellis’ residence with “the Northwest Flex

Team” of law enforcement officers to complete the compliance check. 1 Tr. Vol.

II p. 25; Appellant’s App. Vol. II p. 12. The Flex Team conducted a

“protective sweep” to ensure the safety of the Flex Team and the compliance

officer before starting the compliance check. Appellant’s App. Vol. II p. 13. In

Ellis’ bedroom, the officers observed: (1) a plastic container with a green leafy

substance, which the officers believed to be marijuana; and (2) a fake book with

a hidden compartment that held several bundles of cash. The officers ended the

compliance check of the residence and applied for a search warrant. When the

officers executed the search warrant, the ensuing search yielded several

weapons; a substance believed to be cocaine; paraphernalia consistent with

drug dealing; digital scales; and a large amount of cash.

[5] On June 24, 2019, the State charged Ellis with: Count I, dealing in cocaine, a

Level 2 felony; Count II, possession of cocaine, a Level 3 felony; Counts III,

IV, V, VI, and VII, unlawful possession of a firearm by a serious violent felon,

Level 4 felonies; Count VIII, neglect of a dependent, a Level 5 felony; Count

1 Jones testified that the Northwest Flex Team included Scott Nichols, Chris Chatman, Officer Chin, Officer Soloman, and Tiffany Wren. Jones also testified that she does not conduct compliance checks alone.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 3 of 12 IX, escape, a Level 6 felony; Count X, possession of a controlled substance, a

Level 6 felony; and Count XI, possession of marijuana, a Class A

misdemeanor.

[6] On December 4, 2019, Ellis filed a motion to suppress the evidence seized

during the search of his home. Ellis argued that the search violated his rights

under Article 1, Section 11 of the Indiana Constitution and the Fourth

Amendment to the United States Constitution because: (1) the Community

Corrections Contract did not unambiguously provide that Ellis waived his

rights against a suspicionless search; and (2) law enforcement did not have

reasonable suspicion to search Ellis’ home.

[7] At the hearing on December 10, 2019, the trial court orally granted Ellis’

motion to suppress. Specifically, the trial court found that the Community

Corrections Contract did not include a waiver of searches without reasonable

suspicion. The State now appeals pursuant to Indiana Code Section 35-38-4-

2(5). 2

2 The statute provides:

Appeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken by the state in the following cases: . . . (5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution of one (1) or more counts of an information or indictment. Ind. Code § 35-38-4-2(5). The State contends that the “suppression of evidence prevents the State from going forward on the charges.” Appellant’s Br. p. 4.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 4 of 12 Analysis [8] The State argues that the trial court improperly granted Ellis’ motion to

suppress.

When the State appeals from a negative judgment, it bears the burden to show that the trial court’s ruling on the suppression motion was contrary to law. . . . We evaluate the trial court’s findings of fact deferentially, neither reweighing the evidence nor reassessing the credibility of the witnesses. . . . We will affirm if we find within the record substantial evidence of probative value to support the judgment. . . . But we review the trial court’s conclusions of law, . . . de novo.

State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017) (citations and quotations

omitted).

[9] The issue for our determination is not whether there was reasonable suspicion

to search Ellis’ home, but only whether, based upon the terms of the

Community Corrections Contract, Ellis waived his right to challenge the

search. 3 The trial court held that, notwithstanding the Contract, Community

Corrections lacked reasonable suspicion to search Ellis’ home.

[10] In State v. Vanderkolk, 32 N.E.3d 775 (Ind. 2015), our Supreme Court clarified

the law regarding searches of probation and community corrections

3 Neither Ellis nor the State make separate arguments that the analysis is different on this issue between the Indiana Constitution and the Fourth Amendment on this issue; therefore, we need not address the issue in our opinion.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 5 of 12 participants. 4 Vanderkolk resided with Jordan Sullivan, who was on home

detention through a community corrections program. Community corrections

officers conducted a “routine warrantless search to assure Sullivan’s compliance

with the conditions of the program.” Vanderkolk, 32 N.E.3d at 776. The search

of the home revealed illegal drugs and paraphernalia, and Vanderkolk was

charged as a result. The trial court denied Vanderkolk’s motion to suppress the

evidence found in the common areas of the home because the officers “had

consent to search.” Id. The trial court, however, granted the motion to

suppress evidence found in Vanderkolk’s private bedroom.

[11] The State appealed and relied on Samson v. California, 547 U.S. 843, 126 S. Ct.

2193 (2006), for the proposition that the search did not violate the Fourth

Amendment of the United States Constitution because of Sullivan’s community

corrections status and Sullivan’s consent to the search. Vanderkolk countered

that: (1) a person in a probation or community corrections home detention

program is entitled to Fourth Amendment protections; and (2) officers must

have reasonable suspicion of either criminal activity or a violation to conduct a

compliance check.

[12] On appeal, our Supreme Court acknowledged that: (1) a trial court may place a

person on home detention as part of a community corrections program, see Ind.

Code § 35-38-2.6-4.5; (2) “[p]lacement under either probation or a community

4 For purposes of the Supreme Court’s opinion in Vanderkolk, our Supreme Court noted that the terms “probation” and “community corrections” would be used interchangeably.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 6 of 12 corrections program is a ‘matter of grace and a conditional liberty that is a

favor, not a right[,]’” Vanderkolk, 32 N.E.3d at 777 (quoting Cox v. State, 706

N.E.2d 547, 549 (Ind. 1999)); and (3) probation searches “are necessary to the

promotion of legitimate [state] interests.” Id. at 779.

[13] In analyzing Samson, the Court held: “Samson dispenses with the need for

reasonable suspicion where there exists a valid parole search condition

permitting such searches, it does not authorize suspicionless searches based on

a parolee’s status alone.” Id. Although Samson involved a parole search

condition, whereas Vanderkolk involved a search pursuant to a home detention

placement, our Supreme Court found Samson instructive. The Court held:

Because probation, like parole, involves the conditional release of a prisoner who would otherwise be subject to unrestricted searches during his or her incarceration, because neither probationers nor parolees enjoy the absolute liberty to which other citizens are entitled, because probation searches are necessary to the promotion of legitimate government interests, because the willingness of judicial officers to grant conditional release is likely to be impaired if supervision is uncertain or difficult, and because searches of probationers or community corrections participants require that they be unambiguously informed of a clearly expressed search condition in the conditions of release to probation or community corrections, we conclude that the holding in Samson is applicable to probationers and community corrections participants. We therefore hold that Indiana probationers and community corrections participants, who have consented or been clearly informed that the conditions of their probation or community corrections program unambiguously authorize warrantless and suspicionless searches, may thereafter be subject to such searches during the period of their probationary or community corrections status.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 7 of 12 Id. at 779 (emphasis added).

[14] After Vanderkolk, our Court decided Hodges v. State, 54 N.E.3d 1055 (Ind. Ct.

App. 2016), which we find persuasive. In Hodges, the defendant signed the

following acknowledgement of the terms of his probation: “You waive your

right against search and seizure, and shall permit a Probation Officer, or any

law enforcement officer acting on a Probation Officer’s behalf, to search your

person, residence, motor vehicle, or any location where your personal properly

may be found, to insure compliance with probation.” Hodges, 54 N.E.2d at

1057. Officers then received several tips that Hodges was manufacturing

methamphetamine. Subsequently, a warrantless search of Hodges’ garage

yielded a weapon, a white crystal-like substance, and other items used to

manufacture methamphetamine. Accordingly, the State charged Hodges with

various drug offenses. Hodges filed a motion to suppress the seized evidence,

which the trial court denied.

[15] On appeal, Hodges argued that the search was not supported by reasonable

suspicion. We noted: “The crux of the Vanderkolk holding is that a probation

search need not be supported by reasonable suspicion and may be predicated

solely upon a valid search condition contained in the conditions of probation.

Thus, a probationer’s argument that a probation search lacked reasonable

suspicion is unequivocally no longer a legitimate objection . . . .” Id. at 1059.

[16] In analyzing the terms of Hodges’ probation, our Court held that the language,

“albeit somewhat minimal, was sufficient to constitute a clearly expressed

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 8 of 12 search condition, as it specifically advised Hodges that he was waiving his ‘right

against search and seizure.’” Id. at 1061. Our Court further held:

Although Hodges posits that this mere reference to the right against search and seizure did not clearly express to him exactly what constitutional protections he was giving up when consenting to the rules of probation, we agree with the State that it would make little sense to require a boilerplate reference to our federal or state constitutions in order for the search condition to be considered valid. In light of our supreme court’s expansive holding in Vanderkolk, and its observation that “the willingness of judicial officers to grant conditional release is likely to be impaired if supervision is uncertain or difficult,” 32 N.E.3d at 779, we think that the language used here was within constitutional parameters.

Id.

[17] Here, pursuant to Ellis’ home detention placement, he agreed to the following:

You waive your right against search and seizure, and shall permit MCCC staff, or any law enforcement officer acting on MCCC’s behalf, to search your person, residence, motor vehicle, or any location where your personal property may be found, to insure compliance with the requirements of community corrections.

State’s Ex. 2. This language is almost identical to the waiver provision in

Hodges. As in Hodges, we conclude that this language was sufficient to waive

Ellis’ rights against search and seizure and to authorize a suspicionless search.

Accordingly, the officers did not need reasonable suspicion to search Ellis’

residence.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 9 of 12 [18] Despite the almost identical language, Ellis attempts to distinguish Hodges based

upon Jarman v. State, 114 N.E.3d 911 (Ind. Ct. App. 2018), trans. denied.

Jarman signed a community corrections agreement that provided as follows:

In consideration of the opportunity to participate in a Community Corrections program rather than serve my sentence through the Department of Correction or other secure or more restrictive environment, I acknowledge and agree that I hereby waive my rights concerning searches and seizures under the Fourth and Fourteenth Amendments of the United States Constitution and under Article 1, § 11 of the Indiana Constitution. Specifically, I hereby consent to allow employees of Community Corrections or law enforcement officers to search my person or property without a warrant and without probable cause.

Jarman, 114 N.E.3d at 913. Officers searched Jarman’s residence based on an

anonymous tip and found a powdery substance on Jarman’s person,

methamphetamine, and several other items. Jarman was charged with several

drug offenses and moved to suppress the seized evidence. The trial court

denied Jarman’s motion.

[19] On appeal, our Court reversed the trial court’s denial of the motion to suppress

and held:

In arguing that Jarman waived all Fourth Amendment rights and consented to suspicionless searches, the State relies on the following passage in the waiver: “I hereby waive my rights concerning searches and seizures under the Fourth and Fourteenth Amendments of the United States Constitution and under Article 1, § 11 of the Indiana Constitution.” Read in isolation, that language would certainly seem to support the Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 10 of 12 State's argument. However, that seemingly complete waiver must be read in light of the next sentence: “Specifically, I hereby consent to allow employees of Community Corrections or law enforcement officers to search my person or property without a warrant and without probable cause.” The use of the word “specifically” means that this second sentence defined the actual scope of Jarman’s waiver (and consent) made in the first sentence. Under Vanderkolk, then, the question we must answer is whether a waiver that allows searches “without a warrant and without probable cause” also “unambiguously authorizes” suspicionless searches. We hold that it does not.

Id. at 914-15 (emphasis in original). Our Court went on to conclude that, “[i]f

the State wanted Jarman to be subject to suspicionless searches as a condition

of entering community corrections, it should have included in its waiver form

language like ‘without suspicion,’ ‘without reasonable suspicion,’ ‘without

reasonable cause,’ or ‘without cause.’” Id. at 915 (citations omitted).

[20] We respectfully disagree with the reasoning and outcome in Jarman. The

language of the community corrections agreement in Jarman waived any

requirement for a warrant, and the agreement was not required to specifically

mention a waiver of “reasonable suspicion.” Moreover, even if the reasoning in

Jarman is correct, we do not find Jarman applicable here. Jarman held that the

second sentence in Jarman’s contract limited the scope of the waiver to exclude

suspicionless searches; whereas Ellis’ Contract does not contain comparable

limiting language. Accordingly, Ellis’ reliance upon Jarman is misplaced.

[21] Our Supreme Court has held that community corrections participants “who

have consented or been clearly informed that the conditions of their . . . community

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 11 of 12 corrections program unambiguously authorize warrantless and suspicionless searches

may thereafter be subject to such searches during the period of their . . .

community corrections status.” Vanderkolk, 32 N.E.3d at 779 (emphasis

added). As in Hodges, Ellis’ Community Corrections Contract unambiguously

authorized warrantless and suspicionless searches, without limitation.

Accordingly, the officers did not need reasonable suspicion to search Ellis’

residence. The trial court’s decision to grant Ellis’ motion to suppress was

erroneous.

Conclusion [22] The trial court improperly granted Ellis’ motion to suppress. We reverse and

remand to the trial court to enter an order consistent with our opinion.

[23] Reversed and remanded.

Kirsch, J., and Pyle, J., concur.

Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 12 of 12